Queensland College of Teachers v Teacher MBZ
[2022] QCAT 107
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- Queensland College of Teachers v Teacher MBZ[2022] QCAT 107
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Queensland College of Teachers v Teacher MBZ[2022] QCAT 107
Queensland College of Teachers v Teacher MBZ[2022] QCAT 107
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v Teacher MBZ [2022] QCAT 107 |
PARTIES: | queensland college of teachers (applicant) v TEACHER MBZ (respondent) |
APPLICATION NO/S: | OCR012-22 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 2 March 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
CATCHWORDS: | EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – suspension of teacher – where Queensland College of Teachers suspended the teacher’s registration on basis of its belief that the teacher poses an unacceptable risk of harm to children – whether the teacher does not pose an unacceptable risk of harm – whether suspension should continue – whether non-publication order should be made Education (Queensland College of Teachers) Act 2005 (Qld), s 7, s 49, s 50, s 53, s 54, s 285, s 285AA, s 285B, s 287, Schedule 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Queensland College of Teachers v LDW [2017] QCAT 048 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). |
REASONS FOR DECISION
- [1]Teacher MBZ has been provisionally registered in Queensland as a teacher since 2020. On 13 January 2022, the Queensland College of Teachers (‘the College’) suspended his registration pursuant to s 49 of Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’).
- [2]By s 49 of the Act, the College may suspend a teacher’s registration if it reasonably believes the teacher poses an unacceptable risk of harm to children. By s 50(1), the College must give notice of the suspension to the teacher, which notice includes a statement that the Tribunal will review the continuation of the suspension to decide whether the teacher poses an unacceptable risk of harm to children.[1]
- [3]In accordance with s 50(5) of the Act, the College has referred the continuation of the suspension to QCAT for review and seeks an order that the suspension continue. By s 53(1) the Tribunal must decide whether to continue the suspension, while s 53(3) requires the Tribunal to continue the suspension unless satisfied that the teacher does not pose an unacceptable risk of harm to children.
- [4]While the Act does not define the term ‘unacceptable risk of harm’, by s 7 of the Act ‘harm’ to a child is ‘any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing’. As to ‘unacceptable risk’, see Queensland College of Teachers v LDW:[2] ‘this formulation directs the Tribunal to an assessment of the “chances” of the risk occurring and the magnitude of potential harm if it did occur, and requires a balancing exercise of advantages and detriments’.
- [5]By the terms of s 53(3)(b) of the Act, it is not required that the Tribunal be satisfied that there is an unacceptable risk of harm.[3] Rather the sub-section is cast in negative terms. The Tribunal must decide to continue the suspension unless satisfied that the teacher does not pose an unacceptable risk of harm to children.
- [6]The notice of suspension sets out the College’s reasons for forming the view that Teacher MBZ posed an unacceptable risk of harm to children. The College’s reasons may be summarised as follows: engaging in a serious breach of professional boundaries as a provisionally registered teacher, engaging in inappropriate and/or overfamiliar and/or sexual contact with a student whilst in a position of trust as a camp facilitator. The material filed by the College includes the Notice of Suspension, transcripts of interviews, screenshots of electronical communications, an email and a photograph.
- [7]As required by s 54(1) of the Act, directions were issued by the Tribunal on 19 January 2022, requiring Teacher MBZ to file, by 23 February 2022, any submissions as to why he does not pose an unacceptable risk of harm to children.
- [8]On 22 February 2022, Teacher MBZ filed written submissions in which he submitted that he does not pose an unacceptable risk of harm.[4] While the teacher does not dispute the substantive reasons for the notice of suspension, including acknowledging a sexual relationship with one 16 year old student after she had attended a camp at which he was a facilitator and exchanging intimate photos with her,[5] he says that the relationship was consensual,[6] he believed her to be older,[7] he was going through a difficult time and was dealing with serious medical issues,[8] and that at the camp he did not act in a teaching role, but rather was a ‘facilitator’.[9] He further states that it was not uncommon for camp facilitators to maintain contact with younger persons who had participated in camp events.[10] On the other hand, Teacher MBZ acknowledges that his interaction with the student ‘was not prudent given she was still at school’ and given that he did work as a teacher from time to time, before adding that he ‘exercised poor judgment in engaging in a romantic relationship with her’ and, further, that he ‘made some poor choices’ and took responsibility for his actions.[11]
- [9]While Teacher MBZ stresses that at the camp he was a facilitator and not carrying out the role of a teacher, the relevant provisions of the Act apply to an ‘approved teacher’, which is defined in Schedule 3 of the Act to mean a person who ‘is a registered teacher’ or ‘holds a permission to teach’, which definition extends to Teacher MBZ. By s 3, the main objects of the Act are to ‘uphold the standards of the teaching profession’, ‘maintain public confidence in the teaching profession’, and ‘to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers’. Section 49 of the Act allows the College to suspend a teacher’s registration if it ‘reasonably believes the teacher poses an unacceptable risk of harm to children’. As submitted by the College,[12] that provision is forward looking and protective in its purpose and the Tribunal must decide to continue the suspension unless satisfied that the teacher does not pose an unacceptable risk of harm to children.
- [10]As further submitted by the College,[13] while Teacher MBZ was not engaged in a teaching role at the camp, he nevertheless had provisional teacher registration and, on that basis, professional boundaries and ethics applied to his interaction with students, including where outside a school setting. Section 49 of the Act is framed in terms of an ‘unacceptable risk of harm to children’. In that context, it is telling that Teacher MBZ seeks to draw a distinction between when he is and is not engaged in an actual teaching role, notwithstanding that his registration as a teacher is current and that he may undertake teaching roles from time to time. Whether, at the time, he was in a teaching role or not, the alleged conduct is indicative of a future risk of harm to children. Teacher MBZ has attempted to minimalize his conduct by asserting that he believed the student was older, that he was going through difficult personal circumstances, that the relationship was consensual and that ‘on occasions’ it was initiated by the student and not himself.[14] However, the students in question were only 16 years old and attended the camp as part of a year 11 class. The College states that year 11 students are commonly 15 or 16 years of age.[15] As a facilitator, Teacher MBZ was in a position of trust. It was in that context, including the fact of a power imbalance, that he came to know the students and subsequently develop a relationship with them.
- [11]In the circumstances, including his evident lack of insight, and on the material before me, I am not satisfied that the Teacher MBZ does not pose an unacceptable risk of harm to children. I therefore order that the suspension of Teacher MBZ’s registration as a teacher is to continue.
- [12]I note that under s 55(6) of the Act, Teacher MBZ may apply within 28 days of the notice of this decision to QCAT for review of this decision. He may at that time provide any additional material that may support a submission that he does not pose an unacceptable risk of harm to children.
Non-publication order
- [13]Pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal may make an order prohibiting the publication of information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified. The Tribunal may do so on the application of a party or on its own initiative.[16]
- [14]Teacher MBZ submits that a non-publication order should be made in circumstances where identification of him or of the relevant school or third-party employer may lead to identification of the relevant students. The College agrees with that submission, but submits that exceptions are necessary to facilitate information sharing amongst relevant decision makers concerned with the protection of children.
- [15]I am satisfied that it would be contrary to the public interest for information to be published that would identify Teacher MBZ, any relevant student, school or third party, other than to the extent necessary for the College to meet its statutory obligations, particularly under sections 285, 285AA, 285B and 287 of the Act. This non-publication order can be revisited in any subsequent disciplinary proceedings.
- [16]I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.
Footnotes
[1] The Act, s 50(3)(c). The ‘review’ is conducted in the original jurisdiction of the Tribunal: see s 53(2) of the Act.
[2] [2017] QCAT 048, [10]-[11].
[3] See also s 55(1)(b) of the Act.
[4] Respondent’s submissions, [18].
[5] Ibid, [99]-[100], [106].
[6] Ibid, [96], [100], [106].
[7] Ibid, [80], [88]-[89].
[8] Ibid, [83], [102], [110]-[111].
[9] Ibid, [64], [86].
[10] Ibid, [38].
[11] Ibid, [86], [102].
[12] Applicant’s submissions, [15](a) and (b).
[13] Ibid, [15](d).
[14] Respondent’s submissions, [91], [106].
[15] Applicant’s submissions, [15](k)(vii).
[16] Section 66(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).